Tag Archives: 4th Amendment

Four/Fifths of a Decision by the #SCOTUS

MP900403729OK; all of my chapters for the California State Bar book are submitted, I've returned from my trip to San Francisco for the Section Leadership Conference, and you all know what that means!

[Somebody, please tell me what it means…]

In theory, what I *think* it means is that I'll be able to resume posting relevant content two to three times per week.  In practice?  Stay tuned…

If you're a follower of the Supreme Court, and you're also someone who is very interested in rulings that affect privacy, and depending on which side you're on, then this week, you are either:

  • Happy that the 4th Amendment was protected, but angry that the 5th Amendment wasn't, or,
  • Angry that the 4th Amendment was protected, but happy that the 5th Amendment wasn't, or,
  • Happy about both, or angry about both.

It all depends on the facts.  In the Jones case, aka, the "GPS" case, the court decided that a physical intrusion onto private property to attach a GPS tracking device to a vehicle was a search as defined under the 4th Amendment.  Note the word, "physical".  If only it were that simple

What about tracking a GPS-enabled device?  That issue wasn't addressed, here (except for comments on it in concurring opinions).  If one enables GPS to drive to a location, is that a voluntary disclosure?  That'll be the next frontier.

In a lower-court decision, a federal judge in Colorado ordered a defendant in a criminal case to decrypt her laptop, stating that she was not afforded 5th Amendment protection against self-incrimination, setting off another round of debate – and an examination of conflicting rulings – that will likely meander its way to the Supreme Court.

The logic is of the kind that only law afficionados may appreciate; defendant doesn't technically have to give up her password because she only has to enter it into the system without divulging it to anyone.

In other words, "Don't give up your password…just give us access to everything the password protects."  That, along with the "All Writs Act" of 1789, should afford you some interesting reading on the case.

An interesting week for the Bill of Rights and privacy, indeed…

Closing the Barn Door… #PDA, #GPS & the #4thAmendment

MP900385971If you’ve been following my Tweets lately (I made it easier to do last week by adding a Twitter module to the sidebar), you know I’ve been spending a lot of time linking you to what I feel are some of the best analyses available on the developing area of how 4th Amendment searches & seizures pertain to new technology.

All eyes are on the Supreme Court again, as they prepare to hear arguments this coming Monday in U.S. v. Jones.  Jones pertains to the use of GPS tracking devices and goes directly to the core issues; 1) What is a reasonable expectation of privacy, and 2) When is a warrant required?  For one such analysis, here’s a link to Erwin Chemerinsky’s view.

We also have the emerging issue with cellphones and PDAs.  This morning, I read a great analogy by Lee Tien, a senior staff attorney at the Electronic Frontier Foundation, who – correctly, in my view – likens PDAs to “…a key to your house. When you have someone’s key, you don’t just have a physical object, you have a way to investigate his life in ways you otherwise wouldn’t have.”  [italics/bold added]

You also need a warrant before you enter.

As an IT representative, I had the most trouble explaining this to laymen.  People who are familiar with technology better understand that the information is everywhere and nowhere.  People with less experience tend to think of information in dimensional terms, or not as the string, but as the cans on either end (what we used to refer to as ‘guzinta/guzouda’).

A good example of this was when I was asked by a representative of the Los Angeles County District Attorney’s Office to examine their pilot program for helping parents protect their kids from predators.  One of the suggestions was to make sure that the family PC was in an open area of the house so that parents would always be able to know what their kids were doing.  They visualized the PC as if it were a telephone, e.g. I call your home number and it rings in your home on one of your physical devices.  They couldn’t grasp that if the child was up to something they didn’t want their parents to know about, they’d likely be doing it at a friend’s house, at school or at the library.  In essence, a person could access their information anywhere, not just on the home PC.

Another example was an instruction to parents to demand that their kids provide them with their email accounts.  Again, under 18 or not, if a child is hiding something, they’ll set up a free email account – and they won’t be telling you about it.

Keep in mind, the above examples are pre-texting and pre-PDA.  Of course, now that we have PDAs, texting, etc., non-tech-savvy-people have a much easier time understanding the transitory nature of information.

Sometimes, though, I envision judges as those same parents.  I guess if I were appearing in front of the Supreme Court, I’d tell them that searching someone’s PDA is akin to searching a 4-drawer file cabinet, but with one thing in common between the two; if the owner locked the cabinet (password-protected the PDA), the government would need a warrant

Now comes the more difficult argument; explaining how a password is exactly the same as a key…

e-Discovery California: Brown Cancels Leno

Continuing what many privacy advocates will see as a disturbing trend against 4th Amendment protections in the state of California (and elsewhere), Governor Brown has vetoed the ‘Leno’ bill, SB 914.  The bill would have required the government to obtain a warrant to search a cellular device upon an arrest.  This follows on the heels of the Supreme Court of the United States declining to grant review of the Diaz case.

In another California case, the 2nd District Court of Appeal cited Diaz in upholding the warrantless search of a digital camera.

These days, if you blink, you may miss another decision affecting the concept of privacy in the United States.

Case Got Your Tongue? I Plead the Fourth!

MP910220941 If things continue like this, we're not going to know what the 4th Amendment stands for, anymore.  In my neck of the woods, a three-judge panel from the 6th District Court of Appeals for California extended the authority that SCOTUS granted in Diaz.  In People v. Nottoli (H035902) [warning: link opens 38-page pdf], the Court summoned the previous 'container' argument and ruled that during an inventory search incident to a lawful arrest, a cellular device (in this case, a Blackberry) found in a glove compartment was fair game for a warrantless search.

What result if Nottoli had password-protected his device?

While California appears to be loosening 4th Amendment protections further, other jurisdictions are tightening them.  In United States v. Musgrove, 2011 WL 4356521 (E.D.Wis. 2011) (Joseph, M.J.), the mere movement of a mouse/touching of a keyboard was enough to trigger an illegal search ruling.  How?  Defendant's PC's screen-saver was enabled.  Nothing was visible to officers who responded to D's home to investigate the possibility of criminal behavior.  By either touching the mouse or keyboard, an officer brought the device out of screen-saver mode, revealing a Facebook wall containing incriminating evidence, resulting in D's arrest.

Citing the 'Plain View' exception, the Court reasoned that, had the Facebook wall been visible, no violation would have occurred.  However, once the officer manipulated the mouse or keyboard to reveal the page, this constituted an illegal search.

What result if Musgrove had password-protected his device?

The dichotomy between these two cases is that the former was a search incident to a lawful arrest and the latter was a search resulting in a lawful arrest (according to facts, I'm giving the officers the benefit of the doubt because only the search was ruled unlawful, not the arrest – yet).

Why does this interest me?  Anyone who has used a Blackberry knows that, under normal circumstances, the device goes into sleep mode and one must manipulate a key, the trackball or the trackpad to bring it out of that mode.

I suspect that plenty more fact-specific arguments are on the horizon…

e-Discovery California: ‘In Toto’, We’re not in California Anymore…

MP900439362 They laughed at the academy…

Do you remember when I said I maintain a password on my PDA?  Do you remember how I said it sucks having a password on my PDA, but I felt it was extremely necessary?  Fine – you don't remember.  Here's what I said this past February:

"My PDA is password-protected.  It's an incredible pain.  I hate it.  It makes things cumbersome.  For all I know, it isn't even that effective.  But you know what?  At least I'm doing everything within my power to protect my client information."

Well, it just became a great decision.  Why?  Because the Supreme Court of California recently ruled that if arrested, the government is entitled to search your cellular device!  The Court seems to be basing the opinion on the concept, misguided as it may be, that a cell phone is akin to a closed container, like a pack of cigarettes (prior 4th Amendment decisions hold that authorities may search containers under these circumstances).  Meanwhile, a warrant is still required to search a briefcase!

Think about it for a moment.  If this trend continues, how long do you think it'll be before this right is extended to portable devices in general?  My next thought is, what if you happen to be driving your desktop PC to the local repairman at the time of your arrest?

As to the issue of password-protection, there's no case law controlling at the moment, so here's my 'ruling'; you have the right to remain silent.  I don't care if I'm threatened with bodily harm – nobody will compel me to give them the password to my PDA (until the day arrives that a court of competent jurisdiction rules otherwise).

The Federal 9th Circuit already allows for warrantless tracking devices, but now this?  So much for "liberal" California.  Try your luck with the Ohio Supreme Court, among others, who disagree with this ruling.

But don't push your luck with the Supreme Court of the United States.  With the current makeup of that body favoring government intrusion over individual protections, there's no Emerald City at the end of that yellow brick road.

Then again, a lot of powerful people carry cell phones – including Supreme Court justices.  Maybe now's not the time for that vacation in wine country…

Does this ‘Border’ on Unconstitutional?

MP900400680 When you endeavor to cross a border, you give up many of your 4th Amendment protections against illegal search and seizure.  To put it another way, a search at the border, absent probable cause – or even reasonable suspicion, for that matter (a lower standard) – isn't an illegal search.  Lawyers are well aware of this, but what about the general public?

Two issues are triggered here.  The first, privacy, I've written about before (see my International category).  Also, the mere act of crossing the border with certain ESI on your device (and many paper documents, for that matter) may violate the privacy laws of the country you seek to enter (possibly criminally).

However, today's discussion is a little more nuanced than that.  It's one thing to be granted the right to search a person, their luggage and their electronic devices for a bomb; but does that right extend to the contents of the device?  Well, the short answer is, yes.  Is that proper?  Do you agree?

I suppose this might bring new meaning to the retort, "Don't touch my junk!"

Say you have a password-protected file with your personal banking, credit card and other financial information on it.  Now let's go one step further.  Suppose it's a company laptop, the file contains your employer's financial information and it contains evidence of a crime?  Two steps further?  You keep both personal and corporate information on it (does that sound like you?).  What's the difference between a federal official accessing it at the border versus going into your bank, demanding the key and opening your safe-deposit box – without a warrant?

I'll tell you the difference.  When you show up at the border, it's implied consent.  You waive your right to protest.  That's how the law stands now.  However, that may – or may not – change, subject to the outcome of the latest challenge.

In the meantime, this is a cautionary tale for executives who travel internationally; oh, and don't forget your charger.